Researchers at the Williams Institute at the UCLA School of Law published a new study in the December issue of the SAGE Journal Research and Politics. The study, Transgender inclusion in state non-discrimination policies: The democratic deficit and political powerlessness, was written by Andrew R. Flores, Jody Herman, and Christy Mallory.

Transgender people—people whose gender identity or expression is different from their assigned sex at birth—and their allies advocate for the inclusion of gender identity or transgender in state non-discrimination policies. These policies generally proscribe discrimination in employment, housing, and public accommodations. Courts and administrative agencies have determined discrimination against transgender people is a violation of existing statutes, but there remain efforts by advocates to seek policies that explicitly prohibit discrimination on the basis of transgender status, which are often the result of legislation going through the political process. A pluralist understanding of the political process theorizes that a majority coalition of minorities can offer social groups policies they support. This rests on the presumption that a majority coalition of minorities should rule. Any indication to the contrary may suggest a democratic deficit, whereby more than a majority is necessary for policy introduction. We find that there is a substantial democratic deficit regarding the inclusion of gender identity or transgender in employment non-discrimination policies. On average, state support for the policy must be 81% in order for the state to have a policy reflecting such sentiment. This leaves substantial implications for the political powerlessness of transgender people in the political process.

Many studies have shown that transgender people face significant amounts of workplace discrimination. In the absence of Congressional action, the political approach has been to ameliorating this disparate treatment has been to pass statewide non-discrimination laws. That has been accomplished in Hawaii, Washington, Oregon, California, Nevada, Utah, Colorado, New Mexico, Minnesota, Iowa, Illinois, Maryland, Delaware, New Jersey, Vermont, Connecticut, Massachusetts, Rhode Island, and Maine, along with the District of Columbia. That's only 19 states.

The Williams study found that more than two-thirds of residents in every state support transgender-inclusive employment non-discrimination laws. Percentages range from 68 percent in Oklahoma to 87 percent in Maryland. Nationally, more than three-fourths of Americans currently support such laws.

Even with this high level of support, most states have not passed transgender-inclusive non-discrimination laws.On average, 81 percent of residents need to support such a law before it is likely to be passed, the study predicts.

New York, Pennsylvania and New Hampshire surpass that 81% barrier, yet still have not passed employment anti-discrimination protections for transgender people. Nine other states without protections are within 5% of the trigger: Arizona, Florida, Georgia, Michigan, Montana, North Carolina, Ohio, Virginia, and Wisconsin.

The study found that such protections are most likely to pass when Democrats are the majority in state legislatures.

The attitudes people hold about minorities greatly affect the policy discussions relating to minority rights. But a disconnect between public opinion and policy may suggest that some minorities are politically disadvantaged in the lawmaking process.

--Flores

Given that only 16% of Americans are aware that they know/have met someone who is transgender, this presents somewhat of a hurdle.